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TRUMP US LAW STILL HOLDING Just Security: The Situation in Los Angeles and the U.S. Military \| Legal and policy implications PLAY YOUTUBE VIDEO Original article: https://www.youtube.com/live/M24S3Rcgon0
The Situation in Los Angeles and the U.S. Military \| Legal and policy implications Just Security 2.15K subscribers ... 7,329 views ... 168 likes Streamed live on Jun 12, 2025 Over the past several days, the Trump administration has taken increasingly drastic steps in response to protest activity and unrest in Los Angeles — including federalizing 4,000 National Guard troops and sending hundreds of Marines, against the objections of California’s state and local leadership. As events unfold on the ground in LA, and in the lead-up to further anticipated protests this weekend, Just Security and the Reiss Center on Law and Security will host a YouTube Live event to examine the pressing legal and policy issues at stake. Join us on Thursday, June 12 at 11am ET at YouTube Live to hear from top experts. Speakers: Elizabeth Goitein: Senior Director, Liberty & National Security Program, Brennan Center for Justice Mary B. McCord: Visiting Professor of Law and Executive Director, Institute for Constitutional Advocacy and Protection, Georgetown Law; Member, Board of Editors, Just Security Steve Vladeck: Agnes Williams Sesquicentennial Professor of Federal Courts, Georgetown Law; Executive Editor, Just Security Peter Burgess COMMENTARY I am completely disgusted by Trump behavior over the past few months ... indeed the past many years! He will go down in history as an amazing con-artist. I do not know of anyone else in history that has been able to 'con' The 'law' is a critical component of the US system. I cannot pretemd to be a legal expert, but I have recently become aware that the law is a lot more important than I have previously understood. Peter Burgess Transcript 0:00 in Los Angeles and the use of the US military legal and policy implications Today is Thursday June 12th and at present the president of the United States has federalized 4,000 California National Guard forces and has mobilized 700 US Marines to be sent to the city streets of Los Angeles in response to protests and civil unrest that has arisen up um to respond to uh ICE enforcement operations in and around the city Um I'm Ryan Goodman I'm a law professor at NYU I'm a co-editor and chief of just security and I'm a co-director of the reenter center on law and security at NYU I'm joined with an by an esteemed panel of the top experts in the country And most of this will be about uh listening to them Um and so just those of you who have come to watch this you know who uh we are but uh just by way of introduction uh Liza Gotan is the senior director of the liberty and national security program at the Brennan 1:00 Center for Justice Mary McCord is executive director of IAP the Institute for Constitutional Advocacy and Protection at Georgetown and a member of the board of editors of just security Steve Ladic is the Agnes Williams cesques quential I'm not going to do that right cesquent cesquentennial Here we go Professor Professor right I should have you introduce yourself next time um of federal courts at Georgetown Law and an executive editor at Just Security Um so I thought to start out our discussion not on the law um and turn to you Liza first just to lay out what are the normative policy implications of what we're talking about because you had a terrific tweet thread that went viral as soon as the president had issued the memorandum on Saturday Um but in the tweet thread there's this moment where you take a step back and you talk about what the implications are just for in lay person terms that aren't 2:06 necessarily connected to whether or not this is lawful Can you start us out with that Sure Um so you know without talking about the law as a technical matter but rather talking about the reasons for the law right The reason we have the posi commatatus act yes it was passed in 1878 but it embodies a centuries old tradition in Anglo-American law against um the military participating in law enforcement activities And the reason for this is that if a leader can turn the military inward against the people of that country um that can be a powerful instrument of oppression and tyranny So this law is a vital protection for individual liberty and for democracy So then if we look at what is happening in Los Angeles and what the president has done he has not only deployed the military um to effectively 3:03 police protests I know they're saying they're protecting federal property We'll talk about that later um in a situation where yes there was some violence there was some vandalism but it was being handled by state and local law enforcement successfully Um and that is who is supposed to handle civil unrest in our constitutional system Um so not only was this um inappropriate with respect to Los Angeles again we'll talk more about that But his memorandum authorizes the deployment of federal forces anywhere in the country where protests against ICE activity are occurring regardless of whether there's violence involved That's not a criterion in in the memorandum um or where protests against activity are likely to occur in the future So this is a preemptive nationwide deployment to effectively police protests Unless we think this is limited to ICE actions President Trump two days ago said that any protester who 4:02 came out to protest the military parade this weekend would be met with very heavy force So what we are talking about is it is not about acts of violence It is not about making sure that federal law can be enforced Um it is about suppressing dissent and disagreement against the government and that is probably the most fun fundamental right that we have in a democracy Thanks And um with that I do want to now kind of foreground the legal issue of the first amendment U Mary if I could turn to you for that Um so the question is what we're seeing here is there um a first amendment violation on the face of it um in terms of the memorandum as Liza just says on its face it says that it is a rebellion either on the basis of protest or acts of violence a protest alone could do it And in the preemptive 5:00 use of force around the country it says that um it's an authorization to use um the National Guard and the standing armed forces for protest activity that could interfere with the enforcement of law Um just protests That's one part of it Then as Liza said um in the Oval Office uh the president in the last 48 hours said I have the direct quote I also picked up on that He said quote for and he's talking about the U military parade that's going to take place this weekend Quote for those people who want to protest they're going to be met with very big force End quote And then later he also says quote with very heavy force end quote How do you think about the first amendment issues How should we be thinking about the first amendment issues Uh Marian what if for example the president's statement were in fact written into the memorandum itself Uh would that be the the tripwire um for violation of the first amendment that could actually find its way to a successful court case For example Sure 6:04 So you know we started off by talking about the reason for the protests of course are because of ICE raids that are taking place across the country and particularly these protests in Los Angeles So that's core first amendment protected activity right First amendment doesn't protect acts of violence Those are you know those things would be outside any first amendment protection Um but but clearly many of the people protesting are not engaged in acts of violence So I think um first amendment facial challenges are hard Um and this is also not a regulatory executive order right It's an executive order that's not purporting directly to regulate people's right to engage in first amendment protected activity It's not purporting to turn to create a new crime for example uh that involves protest that um inhibits the execution of the law It's just saying here are the situations I shouldn't say just because that minimizes it but it's saying here are the situations where I am authorizing I 7:05 the president of the United States am authorizing the federalization of the National Guard and the deployment of US military forces So right there it's a little bit different than your normal what you normally think of as a direct first amendment uh regulation that potentially could be facially challenged and the grounds something potentially can be facily challenged on would include in the first amendment context things like overbreath and vagueness and here I want to go back to the language because it's important it says to the extent that protests or acts of violence so it could be one without the other but here's here's the next part directly inhibit the executions of the laws they constitute a form of rebellion against the authority of the United States so it is also clear that there can be restrictions on First Amendment protected activities when those restrictions are contentneutral In other 8:01 words they're not based on the viewpoints of the First Amendment or the content of the First Amendment and where they are they allow they they fulfill a compelling governmental interest Execution of the laws of the United States is something that the government would advance as a as a as a compelling governmental interest protection of public safety including not just law enforcement officers but also members of the public that could get up caught up in acts of violence Um also a compelling government interest There can be contentneutral time place and manner restrictions Things like don't block highways don't block sidewalks right without a permit for those things Um don't block the entrances of places So so restrictions can be upheld on those types of grounds And here even assuming this is an a restriction because the impact of it is a restriction even though it's not a direct regul regulation of speech I think there are questions about its vagueness and its 9:02 over breath What does it mean for example to directly inhibit the execution of the laws Does that mean forming a barrier so that ICE agents can't get to the people they are trying to uh talk to or or arrest um assuming for a moment that they've got legitimate authority to do that but actually don't have to assume that because that would be a different issue of law and a different matter of due process if they were not complying with the law and those arrests So that in you know is it that kind of a thing or is it something that's much more attenuated than that So these are the things that when there are regulations of speech particularly with consequences like criminal consequences sometimes can be challenged because a person has a right to know exactly what they do that could trigger criminal or other repercussions And here I think it's vague what it means to have a protest that directly inhibits the execution of laws All of that said I think a a uh facial challenge to this 10:02 would be challenging um to the president's statements The president has made lots of statements about a number of topics since January 20th and before that um are inconsistent with things that the Department of Justice lawyers have said in court when they are responding to litigation that includes litigation about the alien enemy use of the alien enemies act to remove um alleged members of trenagua from the United States to a terrorism detention center in El Salvador as well as other removals um many different things that the president has said that get raised in litigation to show what his true sort of intent is and what the true import of what he's doing is But then the lawyers will often make legal arguments in court that are something different than that And and and and the courts have so far not been willing to go all the way to the point of saying we're just going to base our you know our ruling and evaluate the legal issues based on the facts of what 11:04 the president is saying outside of the court when there are other facts that are being presented in court They're not ignoring it but I think it would be tough to say what he said the other day is sufficient to make a first amendment v violation If he put that in the directive we'd be closer to the things we've seen with the blacklist the executive orders blacklisting law firms right Where he makes it very clear in the first paragraphs that he is retaliating against a law firm for the causes they represent the people they represent and the people they hire Like it's blatant on its face that it's first amendment retaliation So something baked in could be could be treated differently But this one is pretty vague and again doesn't even talk about Los Angeles It could be as Eliza said anywhere in the country Great Um and then Liza or Steve do you want to jump in on that at all U on and one question I might ask just as a kind of further deepening of the first amendment concerns Is there conduct that 12:02 the guard could carry out and that conduct then would be the kind of first amendment uh right that's u more cognizable in court um like uh detaining somebody on the basis of their protest activity or something like that Is that the kind of application of the memorandum and the authorization of force down to the practice on the ground uh that might change the outlook for first amendment type claims I I guess Oh sorry Go ahead You go first I mean I think I think it's important to come back to a point that that Mary made at the beginning which is you know nothing that the president has done to date Um changes the laws that apply to people on the ground in Los Angeles Um right And so it's the same criminal laws that are still in effect whether it's a matter of you know city state or federal criminal statutes It's the same constitutional protections It's just 13:02 different people who are implicated by potential violations of those laws And so Ryan I think it would you know the problem I have it's not a problem with the question it's a problem with the scenario we have which is you know what really to me is a big trigger to look out for is when troops on the ground whether they're federalized National Guard or um Marines or active duty Marines are actually doing things that ICE officers or FBI agents could not do Um right that like that's that to me is where you have real I think really stronger arguments beyond just that the deployment of troops might be unlawful on its face that this particular conduct is implicating first amendment concerns in a way that if it were an ICE officer or an FBI agent it wouldn't be like right I think two different things were going on the first is a series of confrontations between federal officers of lots of different stripes and protesters where the rules ought to be the same and then the second is the question of when can the federal people 14:04 on that side of the equation be in uniform versus when do they have to be FBI ICE or other civilian law enforcement officers Yeah And just a couple of quick things Um one is that um the you know the memorandum does talk about in terms of uh citing the legal authority and explaining why it applies It talks about you know to the extent these things actually uh cause direct uh you know interference in these law enforcement functions Um but then when it talks about what's being authorized it it doesn't it just says pro any place where protests occur It doesn't say if as long as those protests are directly I mean you might be able to sort of import that from the context but the actual language of it just says any protests including places where protests are not incurring occurring so yet so they really couldn't be interfering So that is I mean that's and totally agree his like sort of off-the- cuff statements about what's going to happen in DC Yeah that's not going to mean much in court I think Um and frankly something in the memorandum that says we I am authorizing 15:07 deployment um to for any place where there might be protests you know you're not going to be able to bring a claim before that's been enforced and until you see how it's being enforced as Steve said Um but what I but what I do want to just say about all of this um is that um I there was a woman who was interviewed um on on uh BBC on a BBC program uh in Los Angeles who said 'I came out to protest Um but things are getting hairy I'm worried I could get arrested The military is here I don't need this I'm gonna just go home because I don't because I'm scared.' So this is and of course that's not well I don't know if I should say of course you know she doesn't have a case you know there's there's president Lar vatum that a subjective chill on is not sufficient to have standing to sue even if even if she had a legal first amendment claim on that and yet right when we see thousands 16:06 of people which we will making that exact same determination and staying home when they would have gone to protest The First Amendment ramifications of that are huge So we talked about sort of the law versus the bigger picture of what's happening like legally Yeah there's probably not a lot to be done right now on the First Amendment but we are seeing the First Amendment effects We are seeing them play out Um so I want to um underscore something Steve said and then pivot off of something that you all said um about what courts might do versus what the law might say Um but just to underscore something Steve said part of our conversation here I think is also about the existing legal existing authorities or authorizations for the use of the National Guard and the Marines compared to what might otherwise happen if the president invoked the Insurrection Act which has not happened yet But what 17:01 Steve said in the sense that even if either of those two scenarios take place the one we're in or the Insurrection Act it doesn't change people's constitutional rights The Insurrection Act does not modify or suspend rights It's just saying which particular forces military versus civilian can be used to implement the law Uh we published a piece at just security by Dakota Rousil which was an evaluation of a popular movie that's out in the last couple years called War Games And it in the movie it's a good movie but at one point it says 'Oh and if the president invokes the Insurrection Act it'll be martial law and people's civil rights will be suspended.' That's and that and what Dakota says is that's not true What Steve says is true Um so I want to talk about um pick up on something that you all have talked about or mentioned which is what the courts might do And I think it might be important in clarifying to people to separate out two things And uh Steve maybe I'll turn to you first and tell me if you think I'm right or just prompt you with this idea The courts might not um find the authorization of 18:08 the National Guard and the Marines unlawful for a host of different reasons like the person doesn't have standing Uh the courts give deference to the executive branch The courts treat it as a political question and then it's purely a question by the president as to whether or not for example the facts on the ground meet the standard of definitions of rebellion or things like that and they say 'Look that's not for us We're not going to second guess the president.' But what I think is maybe important and clarifying is that doesn't mean it's not illegal Those are like judicial doctrines of deference and the like And there's a separate question which is just simply is it still illegal Is it actually do the facts meet the standard And um there are different people There's the public that listens to this question and just wants to know is it legal or not depending independent of how the courts might come down on that and also US government lawyers um 19:01 internal to the executive branch that must are supposed to uh check off the boxes that all of the different aspects are uh are legal Can you talk to about that issue because I know that's something that you think about a lot I can try So um I think the the first thing to say on this is maybe perhaps to distinguish between the different types of legal questions that are being implicated and then to sort of dive in Right So um it might be helpful to break apart two different questions and the problem is is that chronologically they arose backwards Um so the first question I think analytically is can the president deploy active duty federal regulars um which is the colloquial term for folks who are already in the federal military right in response to what's happening in Los Angeles without invoking the insurrection act And then the second question although this came up first is can he federalize California National Guard troops One in general and 20:05 two even without Governor Nuome's uh permission Um right And part of why this is tricky is because as you know Liza pointed out the president has not invoked the Insurrection Act It actually might be more straightforward from a procedural perspective if that had happened Um instead this is sort of short of that And at least so far the government's argument is that um this is all justified as exercises of the president's article 2 power to protect federal functions Um that power right is sort of not one we spend a lot of time talking about normally Um but it's not made up out of whole cloth There's you know this 1890 Supreme Court case in Ray Nagel where the court said President Cleveland did not need a statute to assign a marshall to protect Justice Steven Field from an attempted assassination Um you know the Justice Department over the years has interpreted that rule and perhaps more broadly than it can bear But Ryan I 21:04 think there's at least some consensus that there is a article 2 protective power and the fight is over just how far it goes So this is where we run into Ryan why your legality question is so important In any other administration that very same part of the Justice Department the Office of Legal Council would presumably have been deeply and intimately involved in putting forth the legal justifications for what President Trump has done to date um in answering questions about what the troops can and cannot do once they are utilized in this fashion But we know from public reporting that this administration has made a habit out of bypassing the office of legal counsel Um and so we can't be certain that that's happened in this case Right It's possible this is just coming from the White House council's office and maybe a handful of DOJ lawyers now that there's a lawsuit So legality in this context yes is multifaceted I would say first there are 22:01 hard questions about which government lawyers signed off on this right Second there are the procedural questions about what role if any Governor Nuome is allowed to andor required to play in with respect to those of the troops who have been federalized under the statute 10 USC section 12406 And then it strikes me there are two substantive questions The first is um in general is this an appropriate use of the article 2 protective power And then the second is specifically are these the circumstances that 12406 authorizes federalizations in um and you know those questions are all implicated to some degree in the lawsuit that Governor Nuome has filed in the Northern District of California against President Trump Um that case was assigned to Judge Charles Brier who just happens to be Justice Steven Briar's brother Um right Brier's holding a hearing this afternoon at 1:30 Pacific time on California's request for a 23:02 temporary restraining order I think Ryan we should get comfortable with the possibility that the courts are going to be wary of getting too far into the substantive questions in these cases that they might rely on the procedural ones but that the procedural ones might be sort of uh transitory in that even if there were eyes that President Trump didn't do and te's he didn't cross that's fixable Um and the broader substance of questions I think are going to be sort of harder to fight you know worth litigating but where the courts might be more reluctant to dive in Ryan before we before we get into those issues can I say something else about sort of like the normal internal government process because certainly when I was in the leadership of the National Security Division I had a a lot of different um levels of involvement with not only the office of legal counsel but also the lawyers group So it's not just that some justice department lawyers who un in normal administrations are asked to review any 24:06 type of executive action and that's why we've seen multiple office of legal counsel memos over you know history opining on questions directly related to use of the military not only for limited to protective powers but also under the insurrection act and by back in 1957 when President Eisenhower sent the military uh into Little Rock Arkansas very much over the objection of the governor there But there's also a lawyers group where on decisions that do involve the military and national security it's not just some justice departmental lawyers that weigh in It's lawyers from all of the national security departments and agencies including our intelligence community and including the defense department right Because these are these are really important um decisions to be made And I can tell you in my experience um there's a couple of things that are happening when uh the White House is asking for an opinion or something One 25:04 is that the office of legal counsel and the government attorneys are are wanting to maintain always um robust executive authority right They don't want to give away any executive authority So you will see throughout office of legal counsel opinions on these topics a lot of discussion about inherent presidential authority when it comes to use of the military domestically particularly in emergencies or rebellions insurrections etc But at so the so the office of legal counsel and anything that they actually write up as an opinion they're wanting to preserve that space But at the same time at least in past administrations there is oftentimes at least in recent history other than the Trump administration a desire to not go as far as one as their argument would allow the government to go or the president to go right Out of other credential reasons One to show we're not we're not even uh 26:04 e you know exercising that vast constitutional authority that we believe exists Congress has provided statutes insurrection actitis act Uh we you know so oftentimes the recommendation will do will be to do something that is less than what the department of justice and office of legal counsel is wanting to preserve and I think that's important here because potentially that explains this use for protective powers now rather than invocation of the insurrection act On the other hand as Steve said I have really no reason to believe that this White House is going to the Office Legal Council much less to the lawyers group that involves all the National Security Lawyers before it takes this action We don't know that for sure of course but um but it it is is consistent with history to take a to start with the lesser before you go to the greater And I'm not suggesting that um this is not still a you know step one in what's 27:00 potentially dangerous es esc esc esc esc esc esc esc esc esc esc escalation but that's just kind of like historically the approach that I've seen in my experience at DOJ Yeah In fact I was going to ask you because you've had a vast experience there Um like almost like none other um and um just to add to that um uh I was just looking it up now to get the exact one on April 4th New York Times Charlie Savage has this great report It's titled Trump Sidelines Justice Department Legal Office and it's a very detailed uh investigative reporting on his part about the Office of Legal Counsel being excluded from the normal uh ways in which it's relied upon in this administration Um and then I I think I want to I think this is a good moment to do something I hadn't thought about doing in this part of the conversation but where we're at in the conversation I think it's important uh which is to think about and talk about the government's brief that was just filed yesterday in response to the uh Governor Newsome California's request 28:00 for a temporary restraining order And um this plays right off of what you just said Mary and invite any of you to comment on that Uh the way I read the government's brief is that they are in fact doing what Mary just described saying look we are not having the national guard engage in any law enforcement activities because if they were then you've got a serious posit not even a serious that would be like a posic commit violation Um so the very fundamental laws that Liza mentioned at the beginning and why they're there in the first place So they say 'We're not doing law enforcement We're only doing this narrow protective power which is the president's inherent authority as Steve and Mary just talked about to protect federal buildings federal personnel.' Um and that's it But then later in the uh brief there's this um very extreme version of the ways in which the 29:01 government is claiming that they could have much broader power than they're currently exercising Um without me just putting that out because I know that you and I Steve have already talked about this in part Do you want to just describe what the government's argument is and then um what you think about it and then anybody else can you know jump in Sure So I mean just to to to foreground this just a little bit right So the posiccomatadus act generally prohibits the military from engaging in domestic law enforcement but it's only understood as a clear statement rule In other words Congress can override it And when the posi commatatus act was enacted in 1878 everyone understood that the insurrection act which is the not so helpful name we give to actually five different statutes enacted between 1795 u 1792 but 1795 and 1871 that that was an exception Um the the the I I was sort 30:00 of okay with the government's brief Ryan other than where they forgot to put in a table of contents and a table of authorities um right um up until they make or at least get very close to making the argument that 12406 this very specific federalization power um is itself a statutory exception to the posiccomatus act um that argument is I think incredibly important um I think it's obviously wrong um but it also would be a huge deal if it became part of the story here what's interesting is it's not really implicated yet because the government hasn't claimed in anything that it's doing on the ground that President Trump's use of 12406 to federalize you know 4,000 National Guard troops does allow them to do law enforcement Um right It's almost more like a defense to the argument that they're going too far past their protective power and the government is trying to say well even if that's true they're allowed to Um just really 31:02 quickly why I think that argument is nonsense Um so first 12406 has mostly been understood historically since it was first enacted in 1903 as a purely procedural statute right that like when the military is otherwise being used for the purposes set forth in the statute hey president you can also federalize national guard troops like hey here's an additional body of people who you can bring to bear on the scenario Um if that's right if that's true then obviously it can't satisfy um posatus by itself Second it came after the posiccomatus act um and this is relevant because it should follow under traditional principles of statutory interpretation that congress would have to be very specific in a postcomatus act statute that it was satisfying on the positives act nothing certainly in the text and nothing in the legislative history I've seen that suggests anyone was thinking about it and you know Ryan third I mean there is a debate about 32:04 whether 12406 itself provides a modicum of substantive authority um but even if it does right it would if if that's law enforcement authority then you have sort of a poor man's insurrection act um which you know I think just can't it's it hasn't been understood that way for 125 years and it just would make no logical sense do it So I actually thought on the merits the government's protective power arguments were some of the more coherent things we've heard on the subject to date I have concerns about what's happening on the ground visa argument And I think that's what the hearing before Judge Brier is going to largely get into this afternoon But that was where the government lost me was the notion that 12406 would itself allow for ordinary law enforcement operations by federalized National Guard Ryan in context in which no statute authorizes similar behavior by federal regulators Yeah if if I could jump into and talk about the part of the brief that talks 33:00 about the federal protective power I think it is a little ambiguous whether what they are claiming in the brief is that the federal protective power allows them to do what they are doing now and those are activities that are short of uh direct law enforcement Um and uh and therefore because those activities are short of direct law enforcement there's no posy commatatus problem or whether what they're arguing which they in so many words they said is that the posi commatatus act simply does not apply to uh to actions when those actions are to the military's actions when they are when the purpose of those actions is to um is is to protect federal property and functions and in support of that second interpretation which I think is pretty worrisome and there there is some kind of precedent for that because there's something called the military purpose doctrine under which uh if the primary purpose of the military's activities is uh is not law enforcement right if it's a military purpose then then they can engage in actions that sort of look like 34:03 law enforcement without triggering posi commitatus so to the extent then it's not clear that the government is making an analogous argument here uh that's pretty concerning it's that's not something that's supportive by any case law But but um I think some support for the fact that that is what they're doing is the fact that they've actually authorized um the military They're not doing this right now but they've authorized them to engage in things like temporary detentions And you know maybe they're saying temporary detentions don't qualitat They'd be wrong um the distinction they're drawing between temporary detentions and arrests uh is kind of maybe imported from the Fourth Amendment uh case law where you know either of those things an investigative detention versus an arrest they're both Fourth Amendment issues but one of them requires reasonable suspicion the other one requires probable cause So to the extent they're trying to import that distinction here that's not a distinction courts have made The the test the courts have set forth for Posy 35:04 Commatatus uh is basically a three-part test Um and one thing that can trigger posy commitatus is if the military exerts a power over civilians that is compulsory in nature And so if they are and also just the if you look through the the court decisions and the commentary there's a real emphasis on uh the role of posi commatatus in limiting and preventing sort of face-to-face direct physical interactions between soldiers and and civilians And so these indirect types of assistance that are permissible under the under the Posi Commatatus Act they've been held to be per permissible in part because they don't involve these face-to-face physical interactions Temporary detention is about as compulsory as you can get It is a physical interaction between the military and a civilian It should trigger the Posi Commamatus Act And so I'm concerned that the position of this administration is that they can do law enforcement activities under this federal protective power Um and that 36:07 would bring us into some pretty um problematic territory Um if anybody wants to chime in on that um because that is part of where I want to go to next is the protective power what it's what it contains or what it doesn't contain Um but if sorry the gun I I I think it's worth taking a moment because I'm not sure who all is is is tuning in today to talk about the fact that you know we we say that the Paci commitatus act pro prohibits active duty military or uh federalized national guard from engaging in domestic law enforcement And I think for many people just the idea of seeing federalized National Guard or Marines out you know uh protecting federal buildings protecting ICE agents probably looks and feels like domestic law enforcement And you know to Les's point o over uh you know since the passage of posy commatatus which was just after the 37:04 civil war um it's been interpreted domestic law enforcement has been interpreted rather narrowly um uh in the cases where it's been interpreted and but those that narrow interpretation has included sort of these key things like search seizure arrest detention and so example cases I think the prohibition you know and particularly right after the civil war is there actually was an issue right of like local uh officials using posatadas using military to go out and try to enforce the law and and you know Congress didn't want that and that as Eliza said right when we kicked off today it it's not like it started that that sentiment started there in 1878 it it goes back way before that that you don't want your military enforcing law but I do think there's for for the lay person it's like what's the difference here and the detention issue that Liza raises um I think is is you know the one that gets right close to the line there because I you know I think what we'll 38:04 see the government potentially respond if if it gets to the point this afternoon and we'll we'll we'll all be toning in if we can to the to the hearing is suppose um the military is protecting ICE agents right and suppose there is an direct assault that everyone would agree is an assault on an ICE agent um what are they allowed to do right if they lay hands on that ICE agent I mean excuse me on the person committing the assault and and you know pull that person uh aside I mean that's a seizure right If they were to say 'We're just going to hold you right here until LAPD gets here to take custody,' that's a temporary detention And so that's where I think you start to see this line And so the question is when you're talking about the protective power what does that mean if none of those things are included even if they're momentary and temporary Um you know is there anything left of the protective 39:03 power yet Do you just have to be out there you know protecting but have a but have local law enforcement or a law enforcement agent with police powers standing right by you Maybe that's the answer Maybe Liza would say that is the answer But that that I just don't think we've seen that scenario exactly play out that way Um and so I think that's why uh it's dangerous as Liza says That's why I think we will see some probing into that probably this afternoon at the hearing And that's why keeping our eyes open on will this start to morph into what looks like classic police law enforcement um as these deployments you know continue Can I Ryan can I just come back to to tie Mary's response together to something Liza said earlier I think there are really two different conver uh um sets of issues here Right The first is is what the 40:01 government is doing actually consistent with the whatever the scope of the protective power is under article two Right The second is is the answer to that question informed at all by the posiccomatus act Um right and you know Liza has pointed out you know somewhat in this conversation but also offline that you could read various OLC memos to be somewhat either ambiguous or ambivalent about whether the protective power overrides Posi commatatus or whether it occupies all of the space up to posit That's a huge distinction um in this context because how much everything Mary was just saying matters depends upon the answer Um so at the risk of sort of being a bit of a nerd for a second you know let me take the a shot at why I don't think it makes any sense to view the protective power as overriding posyic commitis Um and the reason is because the founders were so worried about military power that the 41:04 constitution specifically gives to Congress not the president the power to provide for the calling forth of the militia during domestic emergencies i.e to suppress insurrections to repel invasions and to execute the laws of the union You know Justice Jackson's concurrence in Youngstown gets taught a lot in law schools but not the part where he talks about this clause and how it really underscores that Congress not the president is supposed to be the principal um uh director of domestic uses of the military for emergency purposes So it seems to me that like one of the places we might end up in this litigation if we don't get an insurrection act invocation is actually finally having to put some meat on the bone of where the line is between the protective power and possess and whether they are in fact mutually exclusive I I think the historical and founding era and credential arguments all suggest it ought to be You know I worry about the Trump administration toward the end of 42:02 its brief yesterday signaling that maybe it's going to try to argue the opposite Yeah And the opposite in that in a memorandum that applies across the country right Um let me uh end with one other meaty question and then there's so many questions I hope that the four of us will just get back together again and have a similar conversation as events unfold But let me finish with one meaty question I'm going to try to put two things together that I think do fit together Um which is one a question from the live audience is don't we have two executives here The president of the United States and the governor and therefore when courts defer to the executive and executive authority and executive decision-making um how do you figure that one out Because they're actually two different executives that they are in the picture it's not just a unilateral ratchet towards the president And then what I want to tie that into is um this is one place it could touch down Um something 43:03 that we haven't said so far with respect to the protective power is yes the protective power might have one or other sets of conduct that it allows for and doesn't allow for but the OLC opinions are I think very explicit that the only condition under which the president is allowed to use military force for the purposes of the protective power is if the state officials and civilian officials quote unquote cannot or will not give adequate protection end quote to uh the federal uh functions federal buildings federal personnel I think that's maybe to me one of California's I think California has some weak arguments I'll say that But I think one of their strongest arguments is what the situation on the ground was one in which if Gavin Newsome needed to use the California National Guard he had that too and that they had were bringing 44:02 things under control So just to put the two together um the question of is there also difference here to the governor um as an executive and does the OLC opinions about this precondition for ever invoking or exercising the protective power um kick in as an important guard rail Can I can I take the first and leave the harder second question for for Liza and Mary Um so I I I might I might be idiosyncratic here and I might get myself into trouble but I don't think I I I think the Constitution resolves conflicts of executive power in favor of the federal government And I think we all would prefer it that way Um right And so change Gavin Newsome right to Governor Wallace right Change it from 2025 to 1965 And now it's a governor saying 'Everything's fine I don't need your help integrating the schools.' or everything's fine I don't need your help protecting the marchers um from you know 45:00 m from Selvin Montgomery right Like we should be wary about the substantive and procedural predicates for domestic use of the military But there's a reason why going all the way back to the founding we have not in many not all but in many of these contexts given governor's veto Um and you know whether this is one where the governor should have a veto because of the specific language of 12406 Putting that to the side for the sec for a second I think it's really hard to selectively believe in federal supremacy Right Liza Mary do you want to jump in Yeah I I mean I think on the question of uh whether or not the state was doing an adequate job of protecting federal functions um you know I think that's highly relevant to whether this was legal or illegal I don't know that that translates into what the courts will find because I think the courts will give a lot of difference to the president's assessment that federal functions and federal property were not being adequately protected Um so 46:06 I think I think there's a potential difference but I mean one of the things that that this question of federal versus state sovereignty raises and I think um certainly as a as a sovereignty question per se you know Steve is of course you know right Um I think where it becomes relevant is that basically where the military where military deployment in these scenarios is appropriate um is these kind of civil unrest scenarios or protecting federal property scenarios is basically in one of two situations One is where um you know the state is literally doing nothing because they are on the same side as the protesters essentially or as or in the case of the civil rights era they're on the same side of the violent white white mobs So they're doing nothing to protect uh you know the civil rights marchers or you know African-Americans who are trying to go to school right So in in that situation 47:01 where state and local law enforcement is just sitting on its hands right Then then uh you know then you might need to send send in the military In a situation like this where quite clearly that's not the case right And we've all seen the videos of LA police you know throws using pepper spray and tear gas and throwing flashbang grenades right So they were trying to to address the situation So that's the situation where if they are in fact truly overwhelmed the person in the best position to know that the people in the best position to know that are the local authorities If the local authorities are trying to protect the federal property they're trying to quell the civil unrest Um but they need reinforcements they will ask Right So the lack of the governor's request in this case is not to me a sovereignty issue Uh it's an issue of whether the sort of criteria for deployment are met But again I think that that is more of a it's an issue of 48:00 both what the law says how the law has historically been interpreted when it comes to domestic deployment and maybe less what we're how it's going to play out in the courts Right Mary I just want to give you last word on that particular topic or anything that we've discussed or you're thinking about Sure It's interesting because we have two things going on here right We have the presidential memorandum that starts out you know right up at the top saying it's relying on title 10 section 12406 and uh there's only two provisions of that that could potentially be applicable here because the provision number one is invasion by a foreign nation Now granted put aside for a moment what he has said invaded Mary we're being invaded He hasn't said that on the protest in LA I mean Stephen Miller has said they're flying you know Mexican flags and other flags and called it invasion but that's not in the presidential memorandum So putting that one aside notwithstanding what he said about Trendea and the Alien Enemies Act Um he does talk about a rebellion or danger of rebellion against the 49:00 authority of the government governed That was what we talked about early in the in this discussion And he talks about the president being uh well he talks about that activity inhibiting the uh enforcement of the laws of the United States But the fallback clearly is a constitution What we've been talking about here is what is what are the limits on the protective power to the extent that that derives from the constitution and some of that I think will get probed this afternoon The other thing I think that will get probed though is are the criteria of 12406 met And you know this is an area also where there's tons of deference given to the president when it comes to things like that involve national security and emergencies and what's a insurrection what's a rebellion Um and so of course the government's position is you can't look at this at all Uh Judge Brier but I do think this is where it's important to think about what the Supreme Court recently said in the JG case That was one of the first Alien Enemies Act case to hit the court's emergency docket And you know there the government also said 50:06 courts you can't review whether there is an invasion or predatory incursion from a foreign nation because that is committed entirely to the president's discretion And the Supreme Court said while not ruling on the merits of that saying said that you know people subject to this are entitled to due process and can raise issues and courts can decide issues about the interpretation of the congressional statute and its constitutionality So I think there is an argument here that what is a rebellion based at least on what the president has called a rebellion in his presidential memorandum is something that the judge can interpret What what is Congress's the meaning of the words Congress used in 12406 And does what the president has alleged protests or acts of violence that directly inhibit the execution of federal law is that is that a rebellion under the uh text of the statute Um and 51:08 and also they can interpret what this clause that says issues shall be ordered through the governor it Does that mean the governor has a substantive say or is that just purely procedural like they've got to go through the governor I think what the US says in its rep in its responsive brief is it did go through the governor The memo went to the agitant general saying through the governor of California So you know there'll be some probing of that and and so I do think th those interpretation questions are things that the Supreme Court has recently suggested are reviewable getting into facts on the ground and whether those facts on the ground meet rebellion is a trickier question because that starts to sound a lot like um whether facts support an insurrection for purposes of the insurrection act and the Supreme Court said many many many decades ago uh that that's something that is within just the that's within the president's power 52:05 solely to determine that's been undermined a little bit by case law that would sec that suggest just you know we assume good faith in that And so there might be some wiggle room there that when it's so obvious that the facts on the ground don't meet whatever the president has said they are rebellion insurrection what have you there is some room for courts to get involved But these are all questions we don't have answers to yet Yeah And yet is a good way to end this Uh stay tuned Um Mary Liza Steve uh just so grateful to you because you are the folks who have done the most amount of thinking about this not in the last uh four days but in the last several years Um and uh your addition and the ways in which you approach these issues are really um a national treasure So really appreciate it Thank every thanks everybody for joining Feel free to uh engage in comments after the live YouTube and I'll engage in comments with you I'll be reading those and responding as I can So 53:05 thanks everybody for joining us Hey I don't Hey hey hey Hey All right Hey

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